The fact that Arizona is a community property state complicates its inheritance statutes to some extent. Under community property law, spouses already equally own everything acquired during marriage. Therefore, your spouse can only bequeath half your community property, either through the conveyance of a will or -- if he dies without a will -- through the Arizona laws of intestate succession. Intestate succession is an order of inheritance based on degree of kinship. A spouse is a decedent’s most closely related heir, so you’re inevitably entitled to inherit some portion of the estate.
Testate Disposition of Community Property
Wills trump intestate succession laws in all states. Therefore, if your spouse leaves a will, and if its terms are legally valid, she can bequeath her share of community property to whomever she chooses -- but only that half. You own the other half, and her will cannot supersede that aspect of the law. Therefore, at a minimum and no matter what her will says, you keep your half of all the community property after her death. If she attempts to bequeath any of your half, you can file an objection in probate court to block it. She may bequeath you her half of community property as well, or she might give it to her children, to charity or to anyone else. It’s her choice.
Read More: What Are the Community Property States?
Testate Disposition of Separate Property
Some married individuals also own separate property, a legal distinction which even community property states recognize. Separate property is anything a spouse does not have to share, either in a divorce or after death. He might have acquired it before the date of the marriage, and he held title solely in his own name throughout the marriage. Alternatively, he might have received the property as a gift, or as an inheritance of his own. Just as with community property, your spouse can leave these assets to whomever he chooses in his will. Unless he leaves it to you, you have no claim to it.
Arizona’s intestate succession laws also draw a legal line between community and separate property. If your spouse does not have children from another relationship, and if she dies without leaving a will, you inherit her half of community property, as well as all her separate property. This is true even if you had children together. If she did leave children from another marriage or relationship, you inherit one half of her separate property and you maintain ownership of your half of the community property. Her children would receive the other half of her separate property, along with her half of the community property. Even if her children from another relationship are no longer living, their “issue,” or their children or grandchildren, would inherit in their place.
Even if your spouse leaves a will, it’s possible that some assets might fall outside the probate process. For example, life insurance policies and retirement plans may have named beneficiaries other than the decedent's estate. Even if your spouse did not name you as the beneficiary of these assets, you might still have a right to some of their proceeds under Arizona’s community property laws. If your spouse contributed to his retirement plan while you were married, this makes it community property. You’re usually entitled to half the marital portion, regardless of who he named as beneficiary. However, contributions he made prior to the marriage are his separate property, so you might need to speak with an attorney to determine your exact share. Life insurance death benefits are also community property if purchased or contributed to during the marriage, so up to half the proceeds might be rightfully yours. Your share depends on whether the policy is term or whole, and you might need to speak with an attorney to sort this out.
- MedLawPlus.com: Arizona Intestate Succession Laws
- Fleming & Curti: Arizona Community Property Is not Always Subject to Probate
- Jackson White: Life Insurance Policies and Arizona Probate
- USLegal: Effect of Spouse’s Death on Community Property
- Bishop & Martin Law Office: Property Division
- Lawchek: Can a Spouse Elect Against a Will in This State?
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.